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It begins: The Bertha blame game

WSDOT's lawsuit over the Alaskan Way Viaduct Replacement Project is part of a complex legal battle to shift blame, and cost, according to Rob McKenna. (WSDOT image)
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What everyone has been waiting for has officially begun: The Bertha blame game.

On Friday, the Washington State Department of Transportation pointed a legal finger at Seattle Tunnel Partners &#8212 the contractors in charge of the Alaskan Way Viaduct Replacement Project, which involves boring a massive tunnel underneath a portion of downtown Seattle.

Related: WSDOT sues Seattle tunnel contractor over Bertha

WSDOT’s lawsuit in King County Superior Court was the first move in what will likely be a years-long process, according to former state attorney general and KIRO Political Analyst Rob McKenna.

“Tactically, it’s very clear what the state is doing here &#8212 it’s exactly what they should be doing,” McKenna told KIRO Radio’s Jason Rantz. “There are already lawsuits filed by the Seattle Tunnel Partners and their insurance companies. The partners are going to be suing each other, they are going to be in litigation with their insurance companies, and they are going to sue the state.”

“The state has to preserve its own rights by putting its marker down for claims it’s going to have against Seattle Tunnel Partners, who after all, built a machine that hasn’t worked for a long time; it broke. It has to be held accountable for that,” he said.

McKenna said that it is also no surprise that WSDOT asked STP to agree to a stay of the lawsuit while the project is completed.

“That’s because, of course, the state doesn’t want the contractors to hold up the contract for leverage in the lawsuits,” McKenna said, noting that STP could choose to engage legal action before the project is finished.

“Look at it this way: you’re building a house or you’re working with a roofing contractor, and you get into a dispute &#8212 they sue you,” he said. “Do you really want them still working on your roof, or building your house while you’re in court? Absolutely not. You want to finish the project and finish the details afterward.”

Regardless of when the case goes to court, McKenna said that the matter will not be over any time soon.

“[It will be] years. A couple of years anyway. It takes a long time to get a court date,” McKenna said, further noting that there will be extensive pretrial developments.

“This case is especially complex because you have partners suing each other; or if they haven’t yet, they will. You’ve got insurance companies involved … everyone involved is trying to shift liability to someone else involved and shift blame, and therefore shift costs,” he said.

Who will pay for what and who will take on ultimate blame will be for the court to decide. What is certain is that the growing cost of the project.

“It’s going to be expensive for the state, but there is really no way around it,” McKenna said. “Once the state decided the only real solution was to put a tunnel in, and further decided to use the largest open-face mining machine in the world that was brand new, there was a lot of risk that came with that.”

“It’s likely that everyone will absorb their own legal costs … Fortunately for the state &#8212 and I say this with no small measure of pride as the former attorney general &#8212 we have a very good attorney general’s office with very good lawyers in the transportation division,” he said. “They don’t make a lot of money; they are true public servants. Our legal cost will be far lower than the costs incurred by the private parties involved.”

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